Serious Organised Crime and Police Bill

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Mr. Clifton-Brown: Is not the real problem in giving the ordinary citizen a general power of arrest—particularly where someone is only suspected of being about to commit an offence—that under the old rules a constable or more senior police officer had the training and experience to know whether a crime was about to be committed, whereas the ordinary citizen might think, on first sight, that a crime was about to be committed by someone who was going about their business perfectly lawfully, and might try to arrest them?

As my hon. Friend has said, a breach of the peace or something worse is more likely, not less likely, in that case. The power is a very general one, which is likely to cause all sorts of problems, particularly where the police are thin on the ground, such as in rural areas,
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where, in the middle of the night, they take an inordinately long time to get to any suspected crime. Someone holding a person whom they suspected of committing a crime could be holding that person for a long time before a constable could come to supervise.

Mr. Grieve: I agree. In fairness, there is a distinction between the constable's powers and those of the ordinary mortal; I think that the power of arrest granted to the citizen does not extend to arresting someone whom they think is about to commit an offence. It exists only when someone is committing an offence or has committed an offence. That distinction does not, however, detract from what I think are legitimate anxieties. I fear that we are encouraging a free-for-all.

There are of course instances in which it is proper that citizens should intervene to carry out arrests. I hope that what I did outside Green Park station was proper, because I did not consider that what happened was trivial, in view of the individual's behaviour. However, there are many instances in which we should not set one citizen on another to enforce the law in such a fashion. It will lead, I think, to endless problems and headaches for the police. That sort of thing has a tendency to bring the law into disrepute.

Mr. Heath: The hon. Member for Beaconsfield has already had a good canter around the course and he will know that I also expressed concerns about clause 101 on Second Reading. He is right. What we are discussing is due to the fact that there is no distinction in this country between a felony and a misdemeanour. I understand the difficulties that police officers have in determining whether an offence is arrestable, given the profusion of offences on the statute book. Most offences in recent years have been made arrestable, irrespective of their triviality, but that is a side issue. The question of what comprises an arrestable offence—when the threshold is reached—clearly tests a police officer's powers of recollection, if nothing else.

I have two problems with the clause, and what is proposed for police officers. First, I do not think that the clause greatly improves the lot of the constable. He is asked to substitute one threshold, which he has to determine, for another, which is a determination of necessity, effectively—and one, incidentally, that I am sure astute defence lawyers will use in court to determine whether an arrest has been properly made. The arresting constable will have to satisfy the court that there was necessity in the making of the arrest, and I do not think that that is to the advantage of our legal system.

The second major concern is not the expectation that police officers will use the power conferred on them to harass the citizen or to arrest for trivial offences, but the fact that the power of arrest does not sit alone in the system. From the definition of an arrestable offence come all sorts of other powers, which are more intrusive, and of greater concern, and which are conferred, for instance, by the Criminal Justice Act 2003. Perversely, once the statute is in place in its current form, with those corollaries, it will make the Identity Card Bill even more redundant than it
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would otherwise be, as a police officer will be able to stop anyone on suspicion of having committed an offence and, on the basis of the legislation, to ask that person to provide fingerprints and DNA evidence, submit to drug-testing, and undergo all the other things that are conferred by the power of an arrestable offence. That is a worrying development.

11 am

I understand the wish to revisit the power of arrest for constables. Indeed, there has been a review of PACE, and, as the hon. Member for Beaconsfield said, there has been a clear recommendation as to how to proceed. The Minister has three clear options. One is to confer the power of arrest for all offences. The second is to provide a new and better list of offences that are arrestable. Thirdly, if that proves too difficult, a list could instead be provided of those offences so trivial as not to warrant arrest. That might be easier, both for the Home Office and for the police officer on the street who has to use the powers. I put down New Clauses 13 and 14 simply as a way of getting the Minister to tell us why the Home Office has decided as it has, because the other two options have considerable merit. I also want to consider whether there is a necessary adjunct to the wider power of arrest, which is to restrict some of the knock-on powers that come with the arrestable offence.

When it comes to citizen's arrest—an arrest by another person—I entirely agree with the points made by the hon. Member for Beaconsfield. Citizen's arrest allows anybody to arrest anybody else under the most extraordinary circumstances, and that surely cannot be the Minister's intention. Even if one were to remove subsection 4(d),

    ''making off before a constable can assume responsibility for him'',

there are parts of my constituency where one can wait a mighty long time for a constable to take responsibility for a person who has been arrested for a trivial offence. Detention for a week without trial, waiting for a police officer to arrive and take custody of someone who has contravened a minor traffic regulation, is not an entirely proportionate response to the offence in question.

Even if subsection 4(d) were deleted, even if that were not the motivation, the hon. Gentleman's faulty rear light would fall into paragraph (a). A broken stop light is a good reason to arrest someone, as they are likely to cause physical injury to themselves or some other person, which is presumably why we have the traffic regulation requiring a stop light to be in working order, so the test has been satisfied. The arrest is perfectly in order as far as the law is concerned. It cannot be disputed in a court of law that that person is exercising an entirely proper power of arrest. I do not believe that is a sensible way to make arrangements for arrest in this country.

The powers of CSOs are a separate argument. The Minister knows we have always supported the concept of CSOs, but been careful to differentiate their role from that of a police officer. Further muddying of that distinction is not in anybody's interest. If CSOs are given more and more of the powers of police
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constables, they will be used as police constables, albeit inadequately trained and resourced ones. That will mean that CSOs will not be available to do the job that we want them to do, which is to provide a visible presence on the streets and to work in conjunction with the police service, providing its eyes and ears. In the interests of CSOs, police constables and the public, who need to be served well by both categories of officer, it does not make sense to extend the powers of CSOs so that there is an elision or confusion of the two roles, except for specific purposes.

My final point is about the rule of common law. The Under-Secretary has helpfully added her name to amendment No. 255, which the hon. Member for Beaconsfield tabled. I hope that that is a happy realisation that the proposed removal of the power to arrest for a breach of the peace was rather foolish, and I am sure that her colleague, the Minister for Crime Reduction, Policing and Community Safety, will be able explain how that realisation came about. It would wrong to dwell on the matter too long, but we should be happy that the Under-Secretary has recognised that it would have been a mistake to lose that power.

Mr. Grieve: I suspect that the reason for doing that was not so much concerns about the role of the individual citizen as the useful power of the police to intervene in situations where no criminal offence has been committed but where public disorder is quite likely unless somebody intervenes.

Mr. Heath: Indeed, and often in circumstances in which we very much hope that police officers will intervene in order to prevent more serious consequences. I am perfectly content for a police officer to intervene under such circumstances, provided that he or she is satisfied that there is a genuine need to do so.

The power of arrest is a serious power and not to be conferred lightly. It is the power to remove the liberty of another citizen. We must ensure that the power is predicated on the right terms and that the person who is doing the arresting understands those terms, the limits on him or her and what his or her responsibilities are. That is why, in general terms, it is better for a properly trained police officer to do the arresting and why it is better for an offence of sufficient seriousness to trigger that power rather than a triviality. If the offence is a triviality, the capacity for abuse, as well as the knock-on effects on other intrusive powers that obtain as a result of the power of arrest, will increase, very much to the detriment of the liberty of the citizen.

Mr. Djanogly: As I was listening to the interesting speech that my hon. Friend the Member for Beaconsfield gave, I wondered what was behind the Government's thinking and was left thinking that there is a lack of Government policy. The proposals to allow a constable to arrest on suspicion of any offence and to allow the arrest without warrant of anyone who is guilty of an offence or suspected or being guilty are radical and are, as my hon. Friend said, a departure from how things have worked in this country.

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To consider the question of whether reasonable grounds have been complied with, my hon. Friend gave the example of the historical test of whether an offence was liable to five years' imprisonment. Indeed, one of the amendments in the group proposes that the test of five years should be reinstated. For all I know, the Government may still consider that to be the test of reasonableness whether there is an amendment to that effect or not. They have not made that clear. They may think it more fitting to move to a new test of what is to be considered reasonable. Basically, we are concerned about what they want, which is basically that people should be capable of being arrested for anything that they do wrong. The Government have not made their views clear.

We said earlier that, except in limited circumstances such as the imminent risk of injury or if addresses are suspected to be false, the present serious requirement for arrest builds a degree of proportionality into the arrest decision. The Law Society considered that with the proposed wider discretion and necessity test there would be more human rights-based court challenges to arrest.

Have the Government consulted with ethnic groups? Minorities may feel even more subject to discriminatory and disproportionate exercise of police powers with the numbers of possible arrests going up. The Minister may wish to comment. People arrested for minor offences that would not be arrestable at present would also become subject to a host of other related police powers, such as samples being taken and DNA being added to the database. The 2002 joint Home Office and Cabinet Office PACE review recommended producing a definitive list of powers to arrest and to enhance training, rather than removing the distinction between arrestable offences and others. Could the Minister give reasons why the change has taken place?

I want to end by going back to the policy issue. The changes could be used to lay a new framework for a zero-tolerance policy of New York-style policing, where we go around arresting everyone for everything. Minor offences become the important offences, because if one cracks down on petty vandalism and yobbish behaviour, the other more serious offences do not happen. There are cogent arguments for that approach, which the Government have not made and will have to make if those are the reasons why they are putting the proposals in place.

Have the Government discussed the proposals with the police? I would be interested to hear the Minister's views. I know that in recent times the police have been not so interested in smaller crimes, but have stayed in their police cars and headed out to deal with the big crimes. However, we have had a move away from that and back towards community policing in recent years. Is that move part of the Government policy behind the proposals? Has the Home Office carried out research into the matter?

The Minister needs to explain why the changes are required.
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Prepared 18 January 2005